Portland City Council promises new tack after repealing Planned Parenthood buffer zone

PORTLAND — City councilors Monday repealed a Congress Street buffer zone established for Planned Parenthood last November, conceding a June 26 U.S. Supreme Court decision striking down a similar law gave them little legal ground to stand on.

“It looks like we have zero chance of winning this in court,” Councilor David Marshall said before voting for the repeal as part of a 7-1 majority.

Councilor Jill Duson voted to keep the buffer zone ordinance on the books, after talking about services she received at Planned Parenthood beginning at age 15. She also moved to have a committee bring a new measure to the council by mid-September to prevent harassment of patients at Planned Parenthood of Northern New England at 439 Congress St.

While expressing their displeasure with the U.S. Supreme Court’s unanimous rejection of the Massachusetts buffer zones in the McCullen V. Coakley decision, councilors supported Duson’s motion.

“I want everyone to be assured we are not done with this situation,” Councilor Cheryl Leeman said. “This is a bump in the road. The issue for all of us is still on the table.”

Councilors enacted the buffer zone as an emergency measure last November, after about 18 months of protests outside the building housing Planned Parenthood offices.

In February, the ordinance was challenged in U.S. District Court by Daniel and Marguerite Fitzgerald of Shapleigh. The Fitzgerald’s also named two of their children as plaintiffs, and were joined by Leslie Sneddon of Richmond about a month later.

The plaintiffs claimed the city zone violated their First and 14th Amendment rights. On June 18, Judge Nancy Torreson declined to issue an injunction striking down the buffer zone because the Supreme Court had not decided on McCullen V. Coakley.

City Corporation Counsel Danielle West-Chuhta said Monday she expected Torreson would reconsider the injunction request shortly, and issue a decision not in the city’s favor.

Councilor Ed Suslovic agreed.

“I was not expecting an unanimous decision by the Supreme Court,” he said. “It really gives us nothing to hang our hat on in terms of a straight rebuttal.”

The U.S. Supreme Court decision, as written in the majority opinion by Chief Justice John Roberts, essentially upheld plaintiffs’ claims they were engaged in “sidewalk counseling” of patients entering health care offices where abortions were performed, and that a 35-foot buffer zone violated the activists’ First Amendment rights to free speech.

None of the Portland anti-abortion activists spoke during 20 minutes of public comment Monday. The suggestion of “counseling” was attacked by Norway resident Lynne Schmidt, who said she has had an abortion and counsels women who are considering or have terminated pregnancies.

“I am a crisis counselor, I had to go to school for this,” Schmidt said. “Am I going to start going on to the street and say I am a doctor?”

Portland resident Brittany Goldych called the efforts to engage patients in front of Planned Parenthood hypocritical.

“The buffer protects us from undue harassment from those who have taken it on themselves to judge our respectability,” Goldych said.

Portland resident Robert Hains and Kate Brogan, vice president for public affairs at the Family Planning Association of Maine, both urged councilors to consider alternative legal methods to prevent harassment.

Brogan specifically said a city ordinance prohibiting forms of solicitation could be brought into play, because activists who are rebuffed by patients could be in violation by continuing to try and hand out literature or offer their opinions.

The ordinance would require some tweaking, because it is aimed more toward people soliciting donations for a cause. Maine civil rights laws may also come into play, especially if the entrance to 439 Congress St. is blocked, West-Chuhta said.

The necessity of the repeal was acknowledged by Planned Parenthood of New England spokeswoman Nicole Clegg, who said the agency is considering its options to assist patients now that activists will be allowed to return to the Congress Street sidewalk in front of the clinic.

“The reason the buffer zone was necessary in the first place was because of the routine harassment, bullying, and intimidation of patients and staff by protesters,” Clegg said in a press release Monday. “Since the buffer zone took effect, the atmosphere has been far less hostile, and more of a peaceful coexistence.”

Sneddon, once the Maine director for the California-based anti-abortion group Center for Bio-Ethical Reform, has also had abortions and said in court documents she “counsels on the public sidewalk as part of her Christian ministry and out of a calling to treat her neighbors as thyself and always with compassion.”